MADISON TEACHERS, INC., Peggy Coyne, Public Employees Local 61, AFL-CIO and John Weigman, Plaintiffs-Respondents, v. Scott WALKER, James R. Scott, Judith Neumann and Rodney G. Pasch, Defendants-Appellants.
No. 2012AP2067
Supreme Court of Wisconsin
Decided July 31, 2014
2014 WI 99, 851 N.W.2d 337
Oral argument November 11, 2013. (On certification from the court of appeals.)
For the plaintiff-respondents, there was a brief by Lester A. Pines, Lee Cullen, Tamara B. Packard, Susan M. Crawford, and Cullen Weston Pines & Bach LLP, Madison; and M. Nicol Padway, Aaron A. DeKosky, and Padway & Padway, Ltd., Milwaukee; and oral argument by Lester A. Pines, Tamara B. Packard, and M. Nicol Padway.
An amicus curiae brief was filed by Michael P. May, city attorney, and John W. Strange, assistant city attorney, on behalf of the City of Madison.
An amicus curiae brief was filed by Bruce F. Ehlke, Katy Lounsbury, and Ehlke, Bero-Lehmann & Lounsbury, S.C., Madison, on behalf of Laborers Local 236 and AFSCME Local 60.
An amicus curiae brief was filed by Grant F. Langley, city attorney, Rudolph M. Konrad, deputy city attorney, Stuart S. Mukamal, assistant city attorney,
An amicus curiae brief was filed by Milton L. Chappell, Nathan J. McGrath, and National Right to Work Legal Defense Foundation, Inc., Springfield, VA; and Richard M. Esenberg, Thomas C. Kamenick, Brian McGrath, and Wisconsin Institute for Law & Liberty, Milwaukee; and Bruce N. Cameron, Regent University School of Law, Virginia Beach, VA; on behalf of Elijah Grajkowski, Kristi Lacroix, and Nathan Berish.
An amicus curiae brief was filed by Timothy E. Hawks and Hawks Quindel, S.C., Milwaukee; and Marianne Goldstein Robbins and The Previant Law Firm S.C., Milwaukee; and Stephen Pieroni, Madison; and Peggy A. Lautenschlager and Bauer & Bach, LLC, Madison; and Aaron N. Halstead and Hawks Quindel, S.C., Madison; and Barbara Zack Quindel and Hawks Quindel, Milwaukee; and Jeffrey Sweetland and Hawks Quindel, S.C., Milwaukee; and Mark A. Sweet and Sweet and Associates, LLC, Milwaukee; on behalf of the Wisconsin Education Association Council, AFSCME District Councils 24, 40, and 48, AFT-Wisconsin, SEIU Healthcare Wisconsin, Wisconsin Federation of Nurses and Health Professionals, and State of Wisconsin AFL-CIO.
An amicus curiae brief was filed by Andrew T. Phillips, Daniel J. Borowski, Jacob J. Curtis, and Phillips Borowski S.C., Mequon, on behalf of Wisconsin County Mutual Insurance Corporation and Community Insurance Corporation.
¶ 2. In August 2011, Madison Teachers, Inc. and Public Employees Local 61 sued Governor Walker and the three commissioners of the Wisconsin Employment Relations Commission challenging several provisions of Act 10. The plaintiffs alleged, among other things, that four aspects of Act 10—the collective bargaining limitations, the prohibition on payroll deductions of labor organization dues, the prohibition of fair share agreements, and the annual recertification requirements—violate the constitutional associational and equal protection rights of the employees they represent. The plaintiffs also challenged
¶ 3. The Dane County Circuit Court, Judge Juan B. Colas, presiding, invalidated several provisions of Act 10, including the provisions relating to collective bargaining limitations, union recertifications, and the prohibitions on fair share agreements and payroll deductions of labor organization dues. The court of appeals certified the case to this court, pursuant to
I. BACKGROUND AND PROCEDURAL HISTORY
¶ 4. Plaintiff-Respondents are Madison Teachers, Inc. (“MTI“), Public Employees Local 61 (“Local 61“), and their respective representatives, Peggy Coyne and
John Weigman. MTI is a labor organization representing over 4,000 municipal employees of the Madison Metropolitan School District. Local 61 is a labor organization representing approximately 300 City of Milwaukee employees.4
¶ 5. The Defendant-Appellants are Governor Walker and the three commissioners of the Wisconsin Employment Relations Commission (“WERC“), James R. Scott, Judith Neumann, and Rodney G. Pasch (collectively, “the defendants“). Governor Walker and the commissioners of WERC are sued in their official capacities. Governor Walker has responsibility under Wisconsin law to implement and enforce state legislation through the agencies of the State‘s executive branch. The commissioners of WERC are responsible for administering Wisconsin‘s labor laws.
¶ 6. Wisconsin has two principal labor laws, the Municipal Employment Relations Act (“MERA“),
¶ 8. MTI and Local 61 (together with the individual plaintiffs, “the plaintiffs“) filed the instant action in Dane County Circuit Court in August 2011 seeking declaratory and injunctive relief, alleging that certain portions of Act 10 violated the Wisconsin Constitution.
¶ 9. In November 2011, the plaintiffs sought summary judgment on the following claims: (1) that Act 10 violates the plaintiffs’ right to free association guaranteed by
¶ 11. On September 18, 2012, the defendants filed a notice of appeal. On April 25, 2013, the court of appeals certified the case to this court.
¶ 12. On June 14, 2013, this court accepted the certification.
¶ 13. The issue before this court is whether certain provisions of Act 10 violate the United States and Wisconsin Constitutions. The constitutionality of a statute is a question of law that we review de novo. State v. Randall, 192 Wis. 2d 800, 824, 532 N.W.2d 94 (1995). All legislative acts are presumed constitutional and we must indulge every presumption to sustain the law. Id. Any doubt that exists regarding the constitutionality of the statute must be resolved in favor of its constitutionality. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 47, 205 N.W.2d 784 (1973). Consequently, it is insufficient for a party to demonstrate “that the statute‘s constitutionality is doubtful or that the statute is probably unconstitutional.” Wis. Med. Soc‘y, Inc. v. Morgan, 2010 WI 94, ¶ 37, 328 Wis. 2d 469, 787 N.W.2d 22 (citing State v. Smith, 2010 WI 16, ¶ 8, 323 Wis. 2d 377, 780 N.W.2d 90). Instead, the presumption can be overcome only if the party establishes the statute‘s unconstitutionality beyond a reasonable doubt.8 Id.
III. DISCUSSION
¶ 15. This appeal presents four issues: (1) whether Act 10 impermissibly infringes on the associational rights of general employees; (2) whether Act 10 impermissibly infringes on the equal protection rights of represented general employees when compared to non-represented general employees; (3) whether Act 10 violates the home rule amendment to the Wisconsin Constitution by prohibiting the City of Milwaukee from paying the employee share of pension contributions to the Milwaukee ERS; and (4) whether Act 10 violates the Contract Clause of the Wisconsin Constitution by significantly impairing the contractual rights of City of Milwaukee employees.
¶ 16. We address each issue in turn. However, because terminology is critical to interpreting the parties’ arguments, it is important that we review certain relevant terms before beginning our analysis.
A. Terminology
¶ 17. The heart of this appeal centers on unions, collective bargaining, and the right to associate with others to collectively engage in protected First Amendment activities. These issues are always emotionally charged, especially in turbulent times, but perhaps nowhere are these topics more controversial or sensitive than in the State of Wisconsin. The importance of
¶ 18. With respect to the term “collective bargaining,” we agree with the court of appeals that the following discussion provided by an amicus effectively highlights an important definitional distinction:
Historically, in the United States the term “collective bargaining” has been used to describe two legally different activities. . . . The first way in which the term has been used has been to describe an activity that is an element of the right of individual citizens to associate together for the purpose of advocating regarding matters of mutual interest or concern, including matters concerning wages and employment conditions. When used in this way the term “collective bargaining” is descriptive of a collective effort and refers to an activity where the party that is the object of the advocacy, the employer, has no legal obligation to respond affirmatively to the advocacy, but may do so voluntarily.
. . . . [This type of “collective bargaining“] is a fundamental right that constitutionally is protected.
The second way in which the term “collective bargaining” has been used is to refer to a statutorily mandated relationship between an association of employees and their employer, by the terms of which an employer and its employees are obligated to negotiate, in “good faith,” for the purpose of reaching an agreement regarding the employees’ wages and conditions of employment.
Such statutorily recognized “collective bargaining” is subject to legislative modification, for the purpose, at least heretofore, of protecting the employees’ fundamental right to bargain with their employer.
Brief for Laborer‘s Local 236 and AFSCME Local 60 as Amici Curiae at 3, 6-7 (some citations omitted). As the
¶ 19. This definition of “collective bargaining” is consistent with the language of Act 10, which defines “collective bargaining” to mean “the performance of the mutual obligation of a municipal employer . . . and the representative of its municipal employees in a collective bargaining unit, to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement, or to resolve questions arising under such an agreement,” with respect to wages for general employees.
¶ 20. Further, under Act 10, for the purpose of collective bargaining, a “representative” may be chosen “by a majority of the municipal employees voting in a collective bargaining unit [and] shall be the exclusive representative of all employees in the unit. . . .”
¶ 21. Unlike the term “labor organization,” “union” is not defined under Act 10, though as the court of appeals noted, the parties use the term in two distinct ways. First, the term “union” may refer to what the parties in this case agree is a constitutionally
¶ 22. Finally, we refer to a general employee that has chosen to participate in collective bargaining within the statutory framework established by Act 10 as a “represented general employee,” and in contrast, the term “non-represented general employee” to refer to a general employee who has declined to participate.
B. Associational Claims
¶ 23. The plaintiffs’ central argument on appeal is that the following provisions of Act 10 violate the associational rights of general employees and their certified representatives that are guaranteed under
The provision prohibiting collective bargaining between municipal employers and the certified representatives for municipal general employee bargaining units on all subjects except base wages. Wis. Stat. § 111.70(4)(mb)1 .- The provisions limiting negotiated base wage increases to the increase in the Consumer Price Index, unless a higher increase is approved by a municipal voter referendum.10
Wis. Stat. §§ 66.0506 ,111.70(4)(mb)2. , and118.245 . - The provisions prohibiting fair share agreements that previously required all represented general employees to pay a proportionate share of the costs of collective bargaining and contract administration.
Wis. Stat. § 111.70(1)(f) and the third sentence ofWis. Stat. § 111.70(2) . - The provision prohibiting municipal employers from deducting labor organization dues from the paychecks of general employees.
Wis. Stat. § 111.70(3g) .
Accordingly, in our analysis of the plaintiffs’ associational rights claims, we treat the rights protected under the Wisconsin and United States Constitutions to be coextensive. See Lawson v. Hous. Auth. of Milwaukee, 270 Wis. 269, 274, 70 N.W.2d 605, 608 (1955). (holding that
¶ 24. Whether the plaintiffs’ First Amendment challenge to these provisions has any merit is the lynchpin of this appeal. The core of our review is determining whether there is a cognizable First Amendment interest, which establishes the attendant level of scrutiny applied to the legislative judgment behind the requirement. If Act 10 does not infringe on the plaintiffs’ First Amendment rights, it will be upheld if any rational basis can be found for the contested provisions. See Ysursa v. Pocatello Educ. Ass‘n, 555 U.S. 353, 359 (2009).
i. Freedom of Association Doctrine
¶ 25. The freedom of association doctrine has two analytically distinct categories: “intrinsic” freedom of association, which protects certain intimate human relationships under the Substantive Due Process component of the Fourteenth Amendment, and “instrumental” freedom of association, which protects associations necessary to effectuate First Amendment rights. See Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). The second category of association is the type of freedom of association right the plaintiffs assert has been infringed upon in this case. Regarding this form of association, the United States Supreme Court has “recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances,
ii. Overview of the Plaintiffs’ Associational Arguments
¶ 26. The plaintiffs’ argument that Act 10 violates the constitutional right of general employees and their certified representatives to freely associate is premised on a novel legal theory. Therefore, in order to properly address their arguments, we find it helpful to first outline their claims.
¶ 27. The plaintiffs begin by stressing that no contention is being made that public employees have a constitutional right to collectively bargain.11 Instead, the plaintiffs argue that, while the State may statutorily restrict the obligation to collectively bargain in good faith, the State may not constitutionally withhold benefits or penalize public employees for exercising
¶ 28. In framing this argument, the plaintiffs rely heavily on Lawson v. Housing Authority of Milwaukee, 270 Wis. 269, 70 N.W.2d 605 (1955). In Lawson, this court held that a federal housing regulation was unconstitutional because it required tenants to relinquish their right to associate with organizations designated as subversive by the United States Attorney General in order to remain eligible to continue living in federally aided housing projects. Lawson, 270 Wis. at 288. This court concluded that a government agency could not condition the privilege of subsidized housing, which lies within the agency‘s discretion to grant or withhold, on the relinquishment of the constitutionally protected right to associate. Id. at 275.
¶ 29. Lawson is representative of a body of case law that applies the doctrine of unconstitutional conditions. This doctrine embodies the principle that freedom of speech would be rendered a hollow right if the government was permitted to place, as a condition on the receipt of a governmental benefit, any restrictions on speech it pleased. Justice Potter Stewart forcefully expressed the importance of this principle in Perry v. Sindermann:
For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to
a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which (it) could not command directly.’ Speiser v. Randall, 357 U.S. 513, 526 . . . . Such interference with constitutional rights is impermissible.
408 U.S. 593, 597 (1972); see also United States v. Scott, 450 F.3d 863, 866 (9th Cir. 2006) (“The ‘unconstitutional conditions’ doctrine . . . limits the government‘s ability to exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary.“); Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 59 (2006) (“[T]he government may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.“) (internal citations omitted). The purpose of the doctrine is to prevent the government from indirectly restricting a constitutional right that it may not otherwise directly impair.
¶ 30. The plaintiffs raise two related, but allegedly distinct, arguments that, under the unconstitutional conditions doctrine, Act 10 violates their constitutional rights to freedom of association. First, the plaintiffs argue that Act 10 violates the constitutional right to freedom of association by conditioning the receipt of a “benefit“—here, the potential for a general employee or group of general employees to negotiate all issues with the municipal employer, including matters affecting wages and hours—on the relinquishment of the general employees’ ability to choose to have a certified representative act on their behalf. Second, the plaintiffs claim that several provisions of Act 10, through cumulative effect, impose organizational and
¶ 31. Regarding the second argument, the plaintiffs emphasize they are not asserting that each of the contested provisions of Act 10, standing alone, violates associational rights. Instead, the plaintiffs argue it is the impact of the contested provisions of Act 10, taken together, that creates a constitutional violation.
iii. Limitations on Permissible Collective Bargaining Subjects
¶ 32. Before the enactment of Act 10, general employees were permitted under MERA to collectively bargain over a broad array of subjects, including wages, working conditions, work hours, and grievance procedures. Act 10 limits collective bargaining between municipal employers and the certified representatives of general employees to the single topic of “total base wages and excludes any other compensation . . . .”
¶ 33. The plaintiffs argue this limitation penalizes general employees who choose to be represented by a certified representative because Act 10 imposes no limitations whatsoever on the terms that non-represented general employees may negotiate with their municipal employers. Consequently, the plaintiffs contend, Act 10 unconstitutionally burdens the associational rights of general employees because they must
¶ 34. The plaintiffs’ argument does not withstand scrutiny. As discussed above, the plaintiffs cite to this court‘s holding in Lawson, 270 Wis. 269, for the general proposition that the government may not condition the receipt of a discretionary benefit on the relinquishment of a constitutionally protected right. In essence, the plaintiffs rely on Lawson as an illustration of our court applying the unconstitutional conditions doctrine. Beyond Lawson, the plaintiffs cite to numerous cases that support the same doctrinal principle: it is impermissible for the government to condition the receipt of a tangible benefit on the relinquishment of a constitutionally protected right. See, e.g., Agency for Int‘l Dev. v. Alliance for Open Soc‘y Int‘l Inc., 133 S. Ct. 2321, 2328 (2013).
¶ 35. We do not dispute the existence of the unconstitutional conditions doctrine or its robustness in our jurisprudence. The problem lies in the doctrine‘s inapplicability to this case, and consequently, the absence of support it provides the plaintiffs’ argument.
¶ 36. Comparing Lawson to the facts of this case swiftly illustrates the problem. In Lawson, this court held that it was unconstitutional for the government to condition the receipt of a benefit (living in a federally aided housing project) on the relinquishment of a constitutionally protected right (the right to associate with organizations that engage in constitutionally protected speech). Here, the plaintiffs argue that it is unconstitutional for the government, through Act 10, to condition the receipt of a benefit (to participate in collective bargaining on the lone topic of base wages) on the relinquishment of a constitutionally protected right
¶ 37. The plaintiffs’ logical fallacy rests in the false analogy between the respective rights being relinquished in Lawson and in this case. Without question, in Lawson, the right being relinquished for a benefit—the right to associate with organizations that engage in constitutionally protected speech—is fundamental in nature and protected under the First Amendment. Here, however, the “right” the plaintiffs refer to—the right to associate with a certified representative in order to collectively bargain on any subject—is categorically not a constitutional right.
¶ 38. General employees have no constitutional right to negotiate with their municipal employer on the lone issue of base wages, let alone on any other subject. As the United States Supreme Court made clear:
[While t]he public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. . . . [,] the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.
Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 465 (1979) (citations omitted).
¶ 39. The plaintiffs have insisted at every stage of litigation in this case that they are not arguing a constitutional right exists to collectively bargain. It is evident, however, that they really are, for without such a constitutional right, their challenge fails. The plaintiffs’ reliance on Lawson hinges on the defendants conditioning the receipt of a benefit on the relinquish-
¶ 40. Put differently, general employees are not being forced under Act 10 to choose between a tangible benefit and their constitutional right to associate. Instead, Act 10 provides a benefit to represented general employees by granting a statutory right to force their employer to negotiate over base wages, while non-represented general employees, who decline to collectively bargain, have no constitutional or statutory right whatsoever to force their employer to collectively bargain on any subject. For this reason, the plaintiffs’ argument must be rejected.
¶ 41. This point is vital and bears repeating: the plaintiffs’ associational rights are in no way implicated by Act 10‘s modifications to Wisconsin‘s collective bargaining framework. At issue in this case is the State‘s implementation of an exclusive representation system for permitting public employers and public employees to negotiate certain employment terms in good faith. It is a prerogative of a state to establish workplace policy in a non-public process in consultation with only select groups—here, an organization selected by the affected workforce itself—and not others. Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 286 (1984) (“[a]ppellees thus have no constitutional right as members of the public to a government audience for their policy views“).
¶ 42. Not at issue in this case is the plaintiffs’ constitutional right to associate to engage in protected First Amendment activities. The plaintiffs remain free to advance any position, on any topic, either individu-
¶ 43. General employees may feel inclined to collectively bargain under Act 10 in order to compel their employer to negotiate on the issue of base wages, but this creates no unconstitutional inhibition on associational freedom. See, e.g., Knight, 465 U.S. at 289-90 (“Appellees may well feel some pressure to join the exclusive representation in order to give them . . . a voice . . . on particular issues. . . . Such pressure is inherent in our system of government; it does not create an unconstitutional inhibition on associational freedom“). The defendants are not barring the plaintiffs from joining any advocacy groups, limiting their ability to do so, or otherwise curtailing their ability to join other “like-minded individuals to associate for the purpose of expressing commonly held views . . . .” Knox v. Serv. Emps. Int‘l Union, Local 1000, 132 S. Ct. 2277, 2288 (2012).
¶ 44. Thus, we conclude that the plaintiffs’ reliance on Lawson and the unconstitutional conditions
¶ 45. The dissent suggests we mischaracterize the plaintiffs’ argument: “Rather than addressing plaintiff‘s issue that Act 10 infringes on their constitutional right to organize into a collective bargaining unit, the majority erroneously asserts that plaintiffs are claiming a right to bargain as a collective bargaining unit.” Dissent, ¶ 194. In doing so, the dissent argues we “ignore over a century‘s worth of jurisprudence and undermine[] a right long held sacred in our state.” Dissent, ¶ 199.
¶ 46. This sweeping allegation is disappointing, not only because it misconstrues our analysis, but also because it shows confusion over an important area of the law.
¶ 47. The dissent contends the actual issue presented in this case is whether Act 10 infringes on the associational rights of public employees to organize, as if collective bargaining is a peripheral matter.12 Having framed the “actual” issue, the dissent contends employ-
48. Without more information (ascertaining the purpose of the association), it is impossible to determine the argument‘s validity. The right to associate is not derived from some ethereal notion that individuals be granted the right to organize for organization‘s sake. Associational rights are rooted in the First Amendment‘s protection of freedoms of speech and assembly. NAACP v. Alabama, 357 U.S. 449, 460 (1958). Stated differently, the right to engage in activities protected by the First Amendment drives the corresponding right to associate with others in order to engage in those activities. Roberts, 468 U.S. at 622. Thus, the dissent‘s assertion that employees have an associational right to organize in a collective bargaining group is neither true nor false, because it is unclear employees have a constitutional right to organize within that framework as a “collective bargaining unit.”
Even adopting this understanding, however, it is unclear how its reliance on NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) is appropriate. In support of its proposition that “it has long been established there is a constitutional right to organize as a collective bargaining unit,” id., the dissent quotes, with emphasis added, language from Jones & Laughlin: “the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer is a fundamental right.” 301 U.S. at 33. Jones & Laughlin does not support the dissent‘s argument, however, because the case concerned private, as opposed to public, employers. Thus the “right” referred to by the Supreme Court could not have been constitutional. See Laborers Local 236 v. Walker, 2014 WL 1502249, at *8 (citing The Civil Rights Cases, 109 U.S. 3, 17-18 (1883)).
¶ 49. Needless to say, this ambiguity is purposeful, because to complete the thought would necessarily reveal it is an erroneous statement of the law. The dissent knows the
¶ 50. The plaintiffs seek the right to organize with others to pursue something far more specific: collective bargaining with their employer on a range of issues. And at the risk of belaboring the point, this is not a constitutional right. Smith, 441 U.S. at 464-65.
¶ 51. The dissent sidesteps this fact by asserting there is a constitutional right to organize in a collective bargaining unit, but leaves unanswered whether the employees are associating for the purpose of engaging in an expressive activity accorded
¶ 52. Of course employees have a constitutional right to organize together for expressive purposes, including for the purpose of speaking to their employer on a range of issues. As we explained, supra ¶¶ 42-43,
¶ 53. It is undisputed that collective bargaining is not constitutionally protected. Indeed, Wisconsin is under no constitutional obligation to collectively bargain at all. Smith, 441 U.S. at 464-65. But the dissent nevertheless maintains that Act 10 has so discouraged participation in Wisconsin‘s statutory collective bargaining process that it is unconstitutional and accuses us of dodging the question of whether Act 10 “impermissibly punish[es] the exercise of the right to associate.”14 Dissent, ¶ 207.
iv. Fair Share Agreements, Certification Elections, and Payroll Deductions
¶ 55. As noted above, the plaintiffs argue that several provisions of Act 10, through cumulative effect, impose organizational and financial penalties on general employees who choose the statutory “privilege” of collective bargaining for the purpose of requiring their employer to negotiate in good faith on base wages. Specifically, the plaintiffs contend the following provisions of Act 10, taken together, impose a constitutionally impermissible burden on general employees: (1) the prohibition of fair share agreements; (2) the requirement of mandatory annual certification elections; and (3) the prohibition on payroll deductions of labor organization dues from the wages of general employees. The plaintiffs argue these features of Act 10 unconstitutionally interfere with associational rights by burdening and penalizing general employees who elect to collectively bargain. The plaintiffs claim that general employees will eventually surrender the
¶ 56. The plaintiffs cite to no authority supporting their contention that constitutional analysis functions in this manner; i.e., that courts must consider several, otherwise constitutional, statutory provisions to determine if they collectively amount to a constitutional infirmity. Nevertheless, we indulge the plaintiffs in this instance and separately consider the constitutionality of Act 10‘s “cumulative impact and effect.” We first examine each contested provision in isolation. After assessing each challenged part, we examine the contested provisions operating as a whole.
a. Fair Share Agreements
¶ 57. Fair share agreements are negotiated arrangements between municipal employers and certified representatives that require all general employees, including non-represented general employees, to pay the proportional share of the cost of collective bargaining and contract administration. Act 10 prohibits these agreements. See
¶ 58. The plaintiffs’ argument is unconvincing. First, labor organizations “have no constitutional entitlement to the fees of nonmember-employees.” Davenport v. Wash. Educ. Ass‘n, 551 U.S. 177, 185 (2007). Further, as the United States Supreme Court recently reaffirmed in Harris v. Quinn, fair share agreements “unquestionably impose a heavy burden on the First Amendment interests” of municipal employees who do not wish to participate in the collective bargaining process. Harris v. Quinn, 573 U.S. ___, 134 S. Ct. 2618, 2643 (2014); see also Knox, 132 S. Ct. at 2291 (“By authorizing a union to collect fees from nonmembers... our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate“).15
¶ 59. Even setting aside the question of whether fair share agreements are constitutionally permissible,16
¶ 60. The plaintiffs’ argument that the financial cost involved in participating in collective bargaining acts as an unconstitutional “burden” on general employees and certified representatives is premised on a faulty assumption: if the State creates a benefit for which there is no constitutional right, it will nevertheless violate the
¶ 61. We conclude that
b. Certification Elections
¶ 62. Prior to Act 10, general employees could petition WERC to hold an election to designate a labor organization as the general employees’ certified representative. The voting requirement for certification was a simple majority of employees in the collective bargaining unit. Once a labor organization was certified, it would remain the general employees’ certified representative until thirty percent of the employees requested a decertification election.
¶ 63. Act 10, however, requires the certified representative of a collective bargaining unit to undergo an annual certification election in which the representa-
¶ 64. The plaintiffs allege that the certification election requirements imposed by Act 10 place “organizational penalties” on certified representatives and general employees that will eventually dissuade participation in collective bargaining.
¶ 65. The plaintiffs’ argument again conflates collective bargaining rights, which are statutorily guaranteed, with associational rights, which are constitutionally protected. Act 10‘s certification election provisions merely specify the statutory requirements a certified representative must satisfy in order to exclusively negotiate on behalf of the general employees in its bargaining unit. No plausible argument can be made that these provisions, or the “burdens” they impose on certified representatives, infringe on the rights of general employees to freely associate. The certification election provisions do not bar or obstruct general employees from joining other “like-minded individuals to associate for the purpose of expressing commonly held views.” Knox, 132 S. Ct. at 2288. Instead, the provisions at issue outline the requirements and rights of certified representatives that wish to, on behalf of its bargaining unit employees, compel the government to participate in statutory collective bargaining.
¶ 66. Certification requirements for certified representatives have existed in Wisconsin‘s labor laws
c. Payroll Deductions
¶ 67. Prior to Act 10, municipal employers could deduct labor organization dues from the paychecks of general employees at the employee‘s request. Act 10 prohibits this practice.
¶ 68. The United States Court of Appeals for the Seventh Circuit recently considered a separate legal challenge to Act 10 and, in so doing, examined the constitutionality of Act 10‘s prohibition on payroll deductions for labor organizations. The court observed:
The Bill of Rights enshrines negative liberties. It directs what government may not do to its citizens, rather than what it must do for them. While the
First Amendment prohibits “plac[ing] obstacles in the path” of speech... nothing requires government to “assist others in funding the expression of particular ideas, including political ones,” Ysursa, 555 U.S. at 358, 129 S. Ct. 1093.... Thus, even though “publicly administered payroll deductions for political purposes can enhance the unions’ exercise of First Amendment rights, [states are] under no obligation to aid the unions in their political activities.” Ysursa, 555 U.S. at 359, 129 S. Ct. 1093. In Ysursa, the Supreme Court squarely held that the use of a state payroll system to collect union dues from public sector employees is a state subsidy of speech. Id. As the Court explained, “the State‘s decision not to [allow payroll deduction of union dues] is not an abridgment of the unions’ speech; they are free to engage in such speech as they see fit.“... Like the statutes in these cases, Act 10 places no limitations on the speech of general employee unions, which may continue speaking on any topic or subject.
Wis. Educ. Ass‘n Council v. Walker, 705 F.3d 640, 645-46 (7th Cir. 2013). While the Seventh Circuit‘s analysis of Act 10 is not binding on this court, we find no reason to disagree with its clear and rational articulation of the law.18 As explained by the Seventh Circuit, the prohibi-
¶ 69. Accordingly, we hold that
d. Cumulative Burden
¶ 70. We have held that, examined in isolation, each of the contested provisions of Act 10 does not
¶ 71. Viewing the provisions as a whole does not change our analysis. Each of the plaintiffs’ arguments fails for largely the same reason: collective bargaining requires the municipal employer and the certified representative to meet and confer in good faith.
¶ 72. Thus, the plaintiffs’ contention that several provisions of Act 10, which delineate the rights, obligations, and procedures of collective bargaining, infringe upon general employees’ constitutional right to freedom of association is unfounded. No matter the limitations or “burdens” a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The restrictions attached to the statutory scheme of collective bargaining are irrelevant in regards to freedom of association because no condition is being placed on the decision to participate. If a general employee participates in collective bargaining under Act 10‘s statutory framework, that general em-
¶ 73. The
C. Equal Protection
¶ 74. Having concluded that Act 10 does not violate the right to freedom of association under the
¶ 75. As the court of appeals observed, and the plaintiffs concede, the merit of the plaintiffs’ equal protection argument hinges on the merit of their associational rights claim. Having rejected the premise that Act 10 implicates a fundamental right, the plaintiffs’ equal protection claim necessarily fails under rational basis review.
[The Equal Protection Clause] permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State‘s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
This court‘s presumption that all legislative acts are constitutional places a heavy burden on a party challenging the statute‘s constitutionality under rational basis review. See Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, ¶¶ 67-68, 284 Wis. 2d 573, 701 N.W.2d 440. If any doubt exists as to the statute‘s constitutionality, it must be resolved in favor of constitutionality. Id. To prevail, a challenger must establish that the law is unconstitutional beyond a reasonable doubt. Id.
¶ 77. We will uphold a statute against an equal protection challenge if the classification bears a rational relationship to some legitimate government interest. Smith, 323 Wis. 2d 377, ¶ 12. Notably, this requires no declaration by the State about the law‘s purpose, nor evidence supporting the law‘s rationality. The actual motivations of the enacting governmental body are irrelevant. FCC v. Beach Communications, 508 U.S. 307, 315 (1993). Instead, “[i]n evaluating whether a legislative classification rationally advances the legislative objective, ‘we are obligated to locate or, in the alternative, construct a rationale that might have influenced the legislative determination.‘” Ferdon, 284 Wis. 2d 573, ¶ 74 (citing Aicher ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶ 57, 237 Wis. 2d 99, 613 N.W.2d 849).
¶ 78. The plaintiffs’ equal protection argument focuses on two distinct ways in which employees are disparately treated: first, under Act 10, general employees who choose to associate with a certified representative are limited to negotiating on the sole issue of base wages. General employees who do not associate with a certified representative, however, face no limitations on what they may negotiate with their employer. Second, Act 10 prohibits municipal employers from deducting labor organization dues from the paychecks of general employees who choose to associate with a certified representative. General employees that belong to other organizations, however, face no similar prohibition in having membership dues from those organizations deducted from their paychecks.
¶ 79. We will address each challenged classification in turn.
i. Collective Bargaining Limitations
¶ 80. The plaintiffs argue that Act 10 violates general employees’ rights to equal protection under the law because the law limits represented general employees to negotiating base wages, while non-represented general employees have no limitations in what they may negotiate with their employer.
¶ 82. Legislative acts must be upheld when this court can conceive of any facts upon which the legislation reasonably could be based. Aicher, 237 Wis. 2d 99, ¶ 66. The Seventh Circuit determined, and we agree: Act 10‘s requirement that base wage increases above the cost of living require a municipal voter referendum for certified bargaining agents “promote flexibility in state and local government budgets by providing public employers more leverage in negotiations.” Wis. Educ. Ass‘n Council, 705 F.3d at 654. We conclude this classification scheme rationally advances the legislative purpose of improving Wisconsin‘s fiscal health through enhanced control over public expenditures.
ii. Payroll Deduction Prohibitions
¶ 83. The plaintiffs also argue that Act 10 violates general employees’ rights to equal protection under the law because the law prohibits employers from deducting labor organization dues from the paychecks of general employees, while permitting employers to deduct membership dues for other organizations.
¶ 85. Act 10‘s prohibition on deducting labor organization dues could be founded on the defendants’ rational belief that labor organizations are costly for the State. The State has a legitimate interest, especially in the current economic climate, in curtailing costs where possible. The prohibition on paycheck deductions furthers this interest by imposing a burden that affects the influence of labor organizations over general employees who are less enthusiastic about participating in the collective bargaining process. See Wis. Educ. Ass‘n Council, 705 F.3d at 656-57. This provision of Act 10 does not prohibit general employees from paying labor organization dues; it merely requires that employees show the initiative to pay them on their own.
¶ 86. Accordingly, we conclude Act 10‘s collective bargaining limitations and payroll deduction prohibitions survive the plaintiffs’ equal protection challenge under rational basis review.
D. Wisconsin Stat. § 62.623 and the Home Rule Amendment
¶ 87. The Milwaukee ERS21 requires that plan members contribute, or have contributed on their be-
Milwaukee ERS provides retirement and disability benefits, counseling and other services to approximately 27,000 members. The Milwaukee ERS is primarily responsible for administering retirement and disability benefits for employees of the City of Milwaukee, Milwaukee Metropolitan Sewerage District, the Wisconsin Center and the Milwaukee Housing and Redevelopment Authorities, non-certified staff of Milwaukee Public Schools and some employees of the Milwaukee Area Technical College. The ERS pension trust fund is a defined benefit pension plan that provides a monthly benefit to retirees after reaching a minimum retirement age depending upon employment history.
bargaining agreement entered into under
subch. IV of ch. 111 and except as provided in sub. (2), employees shall pay all employee required contributions for funding benefits under the retirement system. The employer may not pay on behalf of an employee any of the employee‘s share of the required contributions.
Every Wisconsin city is assigned to one of four classes. Wisconsin statutes divide cities into the four classes, based on population, as follows:
- First class cities, with a population of 150,000 or over.
- Second class cities, with a population of at least 39,000, but less than 150,000.
- Third class cities, with a population of at least 10,000, but less than 39,000.
- Fourth class cities, with a population of less than 10,000.
greater autonomy over local affairs.27
Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.
¶ 90. As the court of appeals noted in its certification to this court, the crux of this challenge lies in the parties’ disagreement on the proper legal test to employ in determining whether a legislative enactment violates the home rule amendment.
¶ 91. The defendants argue that our case law holds, as a threshold matter, that if a legislative enactment applies uniformly statewide, it cannot violate the home rule amendment. In other words, the defendants contend the determination of whether a legislative enactment is primarily a statewide or local concern is irrelevant, so long as the legislation “with uniformity shall affect every city or village.”
¶ 92. In stark contrast to the defendants’ position, the plaintiffs contend that, in order to comply with the home rule amendment, a legislative enactment must (1) affect a matter of statewide concern, and must (2) apply with uniformity statewide. Further, the plaintiffs argue that if a home rule municipality has enacted a charter ordinance that relates to a matter of purely local concern, any conflicting state statute must be found unconstitutional.
¶ 93. In short, the parties dispute whether a uniformly applied state law may permissibly preempt the charter ordinance of a home-rule city if the ordinance concerns a matter of purely local affairs.
¶ 94. Generally, under our analytical framework for home rule challenges, we first establish the character of the legislative enactment at issue, and only then consider whether the uniformity requirement is satisfied if the state law concerns a matter of primarily local affairs. However, this home rule challenge is atypical because the heart of the parties’ dispute is not limited to the application of the relevant law to the facts presented; instead, it centers on the parties’ wildly divergent positions on the applicable analytical framework. In their certification to this court, the court of appeals requested that we clarify the proper legal test to apply in constitutional home rule challenges.
¶ 95. In order to address the court of appeals’ request for clarity and resolve the parties’ arguments, we first outline the relevant analytical framework. In so doing, we establish that, under our controlling precedent, no merit exists in the plaintiffs’ contention that
i. Analytical Framework
¶ 96. For the purposes of our home rule analysis, we have outlined three areas of legislative enactment: those that are (1) exclusively a statewide concern; (2) exclusively a local concern; or (3) a “mixed bag.” See, e.g., Adams v. State Livestock Facilities Siting Review Bd., 2012 WI 85, ¶ 30, 342 Wis. 2d 444, 820 N.W.2d 404 (citing State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 527, 253 N.W.2d 505 (1977)).
¶ 97. If the legislative enactment concerns a policy matter that is exclusively of statewide concern, we have held that the home rule amendment grants no city or village authority to regulate the matter. Van Gilder, 222 Wis. at 84 (holding that “[w]hen the Legislature deals with matters which are primarily matters of state-wide concern, it may deal with them free from any restriction contained in the home rule amendment“).29
¶ 98. Conversely, if the legislative enactment concerns a matter of purely local affairs, home rule munici-
¶ 99. However, notwithstanding the plaintiffs’ assertions to the contrary, our case law has consistently held that the legislature may still enact legislation that is under the home rule authority of a city or village if it with uniformity “affect[s] every city or every village.”
¶ 100. Finally, in cases where the legislative enactment touches on an issue that concerns both statewide and local government interests (a “mixed bag“), the court must first determine whether the matter is primarily a matter of statewide or local concern. After making this determination, the court then applies the corresponding test. See, e.g., Michalek, 77 Wis. 2d at 528 (concluding the matter at issue was paramountly local in nature and, accordingly, treating it as being of local concern for purposes of home rule analysis); State ex rel. Brelsford v. Ret. Bd. of Policemen‘s Annuity & Benefit Fund of Milwaukee, 41 Wis. 2d 77, 86, 163 N.W.2d 153 (1968) (citation omitted) (reviewing the consistency of two home rule cases and noting “the court was confronted with a subject of legislation which partook both of the nature of a ‘local affair’ and also that of ‘state-wide concern,’ but in the former case it held that the matter was primarily a ‘local affair,’ while the latter decision held that the ‘state-wide concern’ feature was paramount.“); City of Fond du Lac v. Town of Empire, 273 Wis. 333, 338-39, 77 N.W.2d 699 (1956) (explaining that “where a matter affects the interests of local residents as well as the
¶ 101. In sum, our home rule case law instructs us that, when reviewing a legislative enactment under the home rule amendment, we apply a two-step analysis. First, as a threshold matter, the court determines whether the statute concerns a matter of primarily statewide or primarily local concern. If the statute concerns a matter of primarily statewide interest, the home rule amendment is not implicated and our analysis ends. If, however, the statute concerns a matter of primarily local affairs, the reviewing court then examines whether the statute satisfies the uniformity requirement. If the statute does not, it violates the home rule amendment.
ii. The Plaintiffs’ Local Affairs Argument
¶ 102. The plaintiffs, against the great weight of our precedent, broadly depict the home rule amendment as prohibiting the State from enacting any legislation that preempts the charter ordinance of a home-rule city when the ordinance concerns a matter of exclusively local affairs. To support this claim, the plaintiffs rely on this court‘s holdings in Michalek, 77 Wis. 2d 520, and Thompson v. Kenosha Cnty., 64 Wis. 2d 673, 221 N.W.2d 845 (1974).30
¶ 103. The plaintiffs interpret Michalek to hold
¶ 104. Relying on this isolated passage, the plaintiffs construe Michalek to hold that state legislation can never preempt a municipal charter ordinance regulating issues of purely local affairs, regardless of whether the legislation applies uniformly statewide.
¶ 105. The plaintiffs’ reading of Michalek ignores the fact, however, that the court held the charter ordinance and state legislation at issue did not actually conflict with one another.31 Therefore, though Michalek determined the charter ordinance concerned a matter of primarily local affairs, the court did not need to reach the question of whether the contested state legislation satisfied the uniformity requirement of
With no conflict between ordinance and statute, and no potential for conflict, we do not give consideration to the undiscussed question whether the home rule amendment reference to “enactments of legislative and state-wide concern as shall with uniformity affect every city and every village,” (
Art. XI, sec. 3, Wis.Const. ) includes or does not include a statute applying only to counties with over 100,000 population.
Michalek, 77 Wis. 2d at 530 n.16. Put differently, Michalek makes plain that if the court had reached a different conclusion and found the legislation and charter ordinance did, in fact, conflict, the court would have proceeded by examining whether the statute applied uniformly statewide. Read in this context, Michalek does not hold that state legislation that conflicts with a charter ordinance concerning a matter of local affairs is per se unconstitutional. The plaintiffs’ assertion that Michalek supports such a proposition is entirely misplaced. Michalek is in accord with this court‘s long-held rule that when the charter ordinance of a home rule city concerns a matter of local affairs, conflicting legislation must be uniformly applied statewide to satisfy the home rule amendment.
¶ 106. The plaintiffs’ reliance on Thompson hinges on the following language: “Sec. 3, art. XI of the constitution places two limitations on the legislature‘s power to enact statutes interfering with city and village affairs: (1) The subject of the statutes must be a matter of statewide concern; and (2) such statutes must uniformly affect all cities and villages.” Thompson, 64 Wis. 2d at 683. The plaintiffs argue that this explicit statement that two limitations exist
¶ 107. We acknowledge the language that the plaintiffs highlight in Thompson appears, at first blush, to conflict with this court‘s prior interpretations of the home rule amendment. However, a close reading reveals that the implied rule in Thompson cited to by the plaintiffs—that, in matters concerning local affairs, the home rule amendment requires state legislation to concern a matter of statewide concern and be uniformly applied statewide—is never employed by the Thompson court and is, in fact, internally inconsistent with the court‘s own analysis.
¶ 108. In Thompson, we examined a challenge to a state statute that permitted counties to create a county assessor system. Id. at 676. Specifically, the challengers argued that the statute violated the home rule amendment because it impermissibly superseded the assessment powers of cities, villages, and towns within such counties. Id. at 682-83. After setting out the language emphasized by the plaintiffs in this case, the Thompson court then considered whether the state law at issue violated the home rule amendment. First, the court determined that the subject matter of the legislation, which dealt with property tax assessments, was primarily a statewide concern. Id. at 686. Subsequently, in considering the uniformity requirement, the Thompson court noted:
th[e] uniformity limitation only applies if the subject of the statute concerns primarily local affairs. If the subject of the legislation is of statewide concern, the uniformity restriction is inapplicable. . . . Since we have concluded that the subject of [the state law at issue] was primarily a matter of statewide concern, the uni-
formity requirement of the home rule amendment is not applicable here. . . . Thus, even if [the state law at issue] concerns local affairs, and must therefore affect cities and villages uniformly, we hold that this uniformity requirement is not violated.
Id. at 686-87 (emphasis added). Thus, Thompson held that, even had the court decided the state law at issue concerned a matter of local affairs rather than a statewide concern, the statute would still be upheld because it “applie[d] with equal force throughout the state.” Id. at 688. We find it significant that the reasoning and holding in Thompson read as a whole, unlike the isolated passage relied upon by the plaintiffs, harmonizes with controlling precedent.
¶ 109. The reasoning and holdings of Thompson and Michalek are consistent with the entire body of our longstanding home rule jurisprudence and we find no conflict in our precedent to be resolved.32 Consequently,
¶ 110. Having reaffirmed our established analytical framework for home rule amendment challenges, we now apply that framework to the legislative enactment at issue,
iii. Statewide or Local Concern
¶ 111. We first address whether
¶ 112. The plaintiffs, on the other hand, argue that
¶ 113. This court has long recognized that the terms “local affairs” and “statewide concern” in the home rule amendment are problematically vague. See, e.g., Van Gilder, 222 Wis. at 73 (observing that the phrases “local affairs” and “statewide concern” are “practically indefinable“). Further, the terms “local affairs” and “statewide concern” carry the risk of oversimplifying reality: the “functions of state and local governments necessarily overlap,” Van Gilder, 222 Wis. at 64, and, moreover, the nature of governmental functions can change over time.35 Consequently, home rule challenges are, by necessity, fact-specific inquiries, and determinations are made on an ad hoc basis. See, e.g., California Fed. Sav. & Loan Ass‘n. v. City of Los Angeles, 812 P.2d 916, 925 (Cal. 1991) (noting that a “municipal affair” and “statewide concern” represent “legal conclusions rather than factual descriptions“).
¶ 114. Here, the public policy matter at issue unquestionably touches on matters of both statewide and local concern. The administration of a city‘s retirement system, entirely self-reliant in both its management and funding, certainly concerns a matter of local affairs. As the plaintiffs correctly observe, the regulation of local budgetary policy and spending have long been considered matters of purely local concern. See, e.g., Van Gilder, 222 Wis. 58. Further, the enactment of Act 10 negatively impacts the City of Milwaukee‘s sensible interest in offering greater employee benefits
¶ 115. Conversely, the statewide regulation of public sector employee expenditures during a period of economic recession unquestionably involves a matter of statewide importance. The terms of the public employer-employee relationship have long been the subject of statewide legislation in Wisconsin. In fact, Wisconsin was the first state in the nation to establish a framework for public employees to engage in collective bargaining.36 Since that time, the state legislature has enacted numerous statutes dealing with a broad range of issues relating to the public employer-employee relationship. See, e.g.,
¶ 116. Having concluded the conflict between
¶ 117. Our home rule jurisprudence instructs this court, in confronting the “heavy burden of developing the lines” between matters of statewide and local concern, to consider whether the conflict between the charter ordinance and the statute at issue more greatly concerns the people of the entire state or the people in the municipality.37 See, e.g., Michalek, 77 Wis. 2d at 527 (noting “that many matters while of ‘state-wide concern,’ ‘affecting the people and state at large somewhat remotely and indirectly, yet at the same time affect the individual municipalities directly and intimately, can consistently be, and are, ‘local affairs’ . . . .‘“) (quoting State ex rel. Ekern v. City of Milwaukee, 190 Wis. 633, 640, 290 N.W. 860 (1926)); Brelsford, 41 Wis. 2d at
¶ 118. Under this approach, while we recognize that the impact of Act 10 on both the Milwaukee ERS and the City of Milwaukee is significant and unquestionably touches on a matter of local affairs, we conclude the Act primarily implicates a matter of statewide concern. The State has a substantial interest in maintaining uniform regulations on public pension plans in order to reduce the fiscal strain caused by state and local expenditures for public employee compensation. Further, the State is obligated to maintain a functioning civil service system. Public employees work in areas of fundamental importance, ranging from education and public health, to housing and sanitation. Without question, the State has an interest in seeking to safeguard the vitality of these essential services in times of economic uncertainty and duress.38
¶ 120. Here, the state legislation at issue, Act 10, was enacted by the legislature during a period of intense fiscal uncertainty.39 The National Association of State Budget Officers noted that 2010 “presented the most difficult challenge for states’ financial management since the Great Depression . . . .” Nat‘l Governors Ass‘n & Nat‘l Ass‘n of State Budget Officers, The Fiscal Survey of States vii (June 2010). At the time Act 10 was enacted, the Department of Administration was pre-
¶ 121. Enacted during an emergency legislative session, and referred to broadly as the Budget Repair Bill, the scope of Act 10 is extraordinary. It addresses a broad range of subjects, including health insurance premiums, collective bargaining of state employees, retirement contributions for public employees statewide, and modifications to the earned income tax credit.
¶ 122. It is significant that Act 10 impacts the entire state. Act 10 is not narrow and particularized in its application; rather, it is a broad and comprehensive law that applies, not just to City of Milwaukee employees, but to every general employee in the State of Wisconsin. Governor Walker and the legislature determined that, considering the challenges presented by the grim economic climate, it was imperative to make drastic public policy changes, in several areas of the law, spanning the entire state.
¶ 123. We find that, given the facts presented in this case, the conflicting state and local regulations are of more paramount concern within the state as a whole than in the City of Milwaukee. Accordingly, we conclude that
¶ 124. We note the plaintiffs insist this conclusion cannot be reached without ignoring the deference owed to a statement of intent included in a 1947 legislative
amendment pertaining to the Milwaukee ERS.41 We find this argument unpersuasive. The statement of intent referenced by the plaintiffs provides:For the purpose of giving to cities of the first class the largest measure of self-government with respect to pension annuity and retirement systems compatible with the constitution and general law, it is hereby declared to be the legislative policy that all future amendments and alterations to this act are matters of local affair and government and shall not be construed as an enactment of state-wide concern.
§ 31(1), ch. 441, Laws of 1947. The plaintiffs argue that this statement of intent preserved the City of Milwaukee‘s autonomy in managing the Milwaukee ERS and precluded future state legislative enactments that infringe on that autonomy.
¶ 125. The plaintiffs overstate their case. To be sure, this court has held that legislative determinations regarding whether a policy matter constitutes a “state-wide concern” or a matter of “local affairs,” is entitled great weight when categorizing legislative acts. See, e.g., Van Gilder, 222 Wis. at 73-74 (noting that “[e]ven though the determination made by [the legislature] should be held not to be absolutely controlling, nevertheless it is entitled to great weight because matters of public policy are primarily for the legislature“).
¶ 126. However, we reject the plaintiffs’ contention that the legislature‘s declaration in 1947 that the Milwaukee ERS is a matter of local concern is an
¶ 127. Further, the nature of public policy matters is not static,42 and as a result, the character of governmental functions can change over time. Plainly, the legislature‘s determination in 1947 that pension and retirement plans are a local concern does not mean it is an accurate portrayal of how pension and retirement plans impact the fiscal realities of Wisconsin in 2014. See, e.g., 1 Chester James Antieau, Municipal Corporation Law § 3.40, at 3-108 (1995) (“The danger[] to be avoided [is]... a temptation to consider something ‘state’ or ‘local’ because it was so denominated fifty years ago“).43
¶ 128. The ultimate determination whether a legislative enactment is primarily a matter of local or statewide concern rests with this court and not the legislature. Van Gilder, 222 Wis. 58.
¶ 129. Therefore, for the reasons explained above, we hold that
E. Wisconsin Stat. § 62.623 and the Contract Clause
¶ 130. Having determined that
¶ 131. As we explained supra ¶ 87, the Milwaukee ERS44 requires that plan members contribute, or have contributed on their behalf, 5.5% of their earnable
¶ 132. Chapter 36 of the Milwaukee Charter Ordinance (“Chapter 36“) establishes the framework of the Milwaukee ERS. The plaintiffs argue these provisions contractually guarantee that the City of Milwaukee will fund the member contributions to the Milwaukee ERS on behalf of each participating employee hired prior to January 1, 2010, and that, consequently,
i. General Contract Clause Principles
¶ 133. The Wisconsin Constitution prohibits the State from impairing its contractual obligations. Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶ 51, 295 Wis. 2d 1, 719 N.W.2d 408. The Contract Clause of the Wisconsin Constitution provides: “[n]o bill of attainder, ex post facto law, nor any law impairing the
¶ 134. In evaluating a claim brought under the Contract Clause, we first consider whether the contested state legislation has “operated as a substantial impairment of a contractual relationship.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978). This inquiry has three components: (1) whether there is a contractual relationship, (2) whether a change in law impairs that contractual relationship, and (3) whether the impairment is substantial. Dairyland, 295 Wis. 2d 1, ¶ 261 (Prosser, J., concurring in part/dissenting in part).
¶ 135. The inquiry does not end when the reviewing court finds a contractual relationship exists and that the change in law constitutes a substantial impairment of that contractual relationship. If the legislative act constitutes a substantial impairment to a contractual relationship, it will still be upheld if a significant and legitimate public purpose for the legislation exists. Id., ¶ 56. “Although the public purpose need no longer address an emergency or temporary situation, it should be directed towards remedying a broad and general
¶ 136. Finally, if a significant and legitimate purpose exists for the challenged legislation, “the question becomes whether the legislature‘s impairment of the contract is reasonable and necessary to serve an important public purpose.” Wis. Prof‘l Police Ass‘n v. Lightbourn, 2001 WI 59, ¶ 149, 243 Wis. 2d 512, 627 N.W.2d 807.
¶ 137. As the court of appeals explained in its certification, under the established framework for Contract Clause analysis, the plaintiffs’ challenge presents two issues: (1) whether Chapter 36 of the Milwaukee Charter Ordinance contains a contractual guarantee that the City of Milwaukee will fund the member contributions on behalf of each participating employee hired prior to January 1, 2010, and (2) if a contractual right exists, whether there has been an impermissible impairment of the contract.46
ii. Contractual Rights Under Milwaukee ERS
¶ 138. A legislative enactment is presumed not to create “contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” Nat‘l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 466 (1985) (internal quotation marks omitted); see also U.S. Trust Co. v. New Jersey, 431 U.S. 1, 17 n.14 (1977) (a statute is “treated as a contract when the language and circumstances evince a legislative intent to create private rights of a contractual nature enforceable against the State“). Thus, courts employ a “very strong” presumption that “legislative enactments do not create contractual rights.” Dunn v. Milwaukee Cnty., 2005 WI App 27, ¶ 8, 279 Wis. 2d 370, 693 N.W.2d 82.
¶ 139. The threshold requirement to recognize public contracts has been referred to as the “unmistakability doctrine.” Parker v. Wakelin, 123 F.3d 1, 5 (1st Cir. 1997). The unmistakability doctrine is a canon of construction rooted in the belief that “legislatures should not bind future legislatures from employing their sovereign powers in the absence of the clearest of intent to create vested rights protected under the Contract Clause....” Id. (” ‘[N]either the right of taxation, nor any other power of sovereignty, will be held ... to have been surrendered, unless such surrender has
¶ 140. Hence, in this case, we must consider whether Chapter 36 of the Milwaukee Charter Ordinance evinces a clear intent by the City of Milwaukee Common Council (“Common Council“)47 to create contractual rights against the modification of contribution payments to the Milwaukee ERS.
¶ 141. Wisconsin precedent has held that public pension plans may create constitutionally protected contractual rights between the State and public employees that are protected by the Wisconsin Constitution. See State ex rel. Cannon v. Moran, 111 Wis. 2d 544, 554, 331 N.W.2d 369 (1983) (holding that the plaintiffs, as plan members of the Milwaukee County Employees’ Retirement System, had a constitutionally protected contract).
¶ 142. As this court has noted, however, when examining whether a legislative enactment creates a
¶ 143. We begin with the language of Chapter 36 of the Milwaukee Charter Ordinance.48 The parties’ arguments rely on the following ordinance subsections from Chapter 36:
§ 36-08-7-a-1: [T]he city shall contribute on behalf of general city employes 5.5% of such member‘s earnable compensation.
§ 36-13-2-a: Every such member shall thereby have a benefit contract in.... all... benefits in the amounts and upon the terms and conditions and in all
other respects as provided under this [ordinance]... and each member and beneficiary having such a benefit contract shall have a vested right to such... benefits and they shall not be diminished or impaired by subsequent legislation or by any other means without his consent. § 36-13-2-c: Every person who shall become a member of this retirement system... shall have a similar benefit contract and vested right in... all... benefits in the amounts and upon the terms and conditions and in all other respects as... in effect at the date of the commencement of his membership.
§ 36-13-2-d: Contributions which are made to this fund... by the city... as contributions for members of this system shall not in any manner whatsoever affect, alter or impair any member‘s rights, benefits, or allowances, to which such member under this [ordinance] is or may be entitled....
§ 36-13-2-g: Every member, retired member, survivor and beneficiary who participates in the combined fund shall have a vested and contractual right to the benefits in the amount and on the terms and conditions as provided in the law on the date the combined fund is created.
¶ 144. Turning to the language of Chapter 36, we find it unquestionably creates contractual rights in the pension benefits of Milwaukee ERS plan members.49 Two subsections of Chapter 36 are particularly germane in reaching this conclusion. First, § 36-13-2-g provides:
Every member, retired member, survivor and beneficiary who participates in the combined fund shall have
a vested and contractual right to the benefits in the amount and on the terms and conditions as provided in the law on the date the combined fund is created.
(Emphasis added.) Further, § 36-13-2-a provides, in relevant part:
Every such member... shall thereby have a benefit contract in... all... benefits in the amounts and upon the terms and conditions and in all other respects as provided under this [ordinance]... and each member and beneficiary having such a benefit contract shall have a vested right to such... benefits and they shall not be diminished or impaired by subsequent legislation or by any other means without his consent.
(Emphasis added.)
¶ 145. Sections 36-13-2-g and 36-13-2-a unmistakably evince the clear intention of the Common Council to create a “vested and contractual right to the [pension] benefits in the amount and on the terms and conditions” as provided in Chapter 36. § 36-13-2-g.
¶ 146. However, this still leaves unresolved the central issue before us: whether “contributions” to the Milwaukee ERS fit within the “benefits” for which plan members have a “vested and contractual right.” § 36-13-2-g.
¶ 147. The defendants contend that § 36-13-2-g, which the plaintiffs cite as creating a “contractual right” to the contributions paid by the City of Milwaukee, can create no such contractual obligation because the subsection does not refer explicitly to “contributions.”50 Further, the defendants argue § 36-13-2-d demon-
strates that, as the terms are used in Chapter 36, contributions to the Milwaukee ERS are not “benefits” or “terms and conditions.”
¶ 148. The plaintiffs disagree with the defendants’ reading of Chapter 36 and note that the title of § 36-13-2 is “Contracts to Assure Benefits,” and that the subsection guarantees that every member shall have a benefit contract and vested right concerning “[t]he annuities and all other benefits in the amounts and upon the terms and conditions and in all other respects as provided under this act [which] shall not be diminished or impaired by any subsequent legislation or by any other means.” § 36-13-2-a. The plaintiffs contend that the words “upon the terms and conditions and in all other respects as provided under this act,” incorporate § 36-08-7a-1, which provides that the City of Milwaukee will contribute 5.5% of its employees’ earnable compensation to the Milwaukee ERS.
¶ 149. The parties agree that Chapter 36 unambiguously requires plan members of the Milwaukee ERS to “contribute or have contributed on their behalf, 5.5% of the member‘s earnable compensation.” § 36-08-7a-1. Since 1970, and until the enactment of Act 10, the City of Milwaukee, pursuant to § 36-08-7-a-1, has paid the employees’ contribution share:
Members who are not firemen, policemen or elected officials shall contribute or have contributed on their behalf, 5.5% of the member‘s earnable compensation. Except as provided in subds. 2 and 3, subsequent to and commencing with the first pay period of 1970, the city shall contribute on behalf of general city employes 5.5% of such member‘s earnable compensation. Members
employed by city agencies participating in the system shall contribute 5.5% of their earnable compensation less any contribution made on their behalf as determined by the governing bodies of such agencies.
The plaintiffs argue that the contributions referred to in this subsection are a “benefit,” and accordingly, pursuant to § 36-13-2-g and § 36-13-2-a, plan members have a contractually vested right in the contributions paid by the City of Milwaukee on behalf of all participating plan members.
¶ 150. Upon a close reading of the language of Chapter 36, however, we find nothing to suggest that the City of Milwaukee intended to classify contribution rates as a contractually protected “benefit.” Consequently, there is no indication the Common Council, and by extension the State, bound itself to never modifying the contribution rates that fund the Milwaukee ERS.
¶ 151. Two sources in particular inform our analysis. In § 36-13-2-d, an evident distinction is drawn between “contributions” used to fund the Milwaukee ERS and the “benefits” conferred to plan members. Section 36-13-2-d provides, in part:
Contributions which are made to [the Milwaukee ERS]... by the city... as contributions for members of this system shall not in any manner whatsoever affect, alter or impair any member‘s rights, benefits, or allowances, to which such member under this [ordinance] is or may be entitled ....
(Emphasis added). This subsection unquestionably distinguishes between the “contributions” paid by the City of Milwaukee and the contractually protected “benefits” of the plan members. Our rules of interpretation dictate that Chapter 36 must “be construed in a manner that
¶ 152. Section 36-05 further belies the plaintiffs’ argument that “contributions” are a “benefit” under Chapter 36. Section 36-05, titled “Benefits,” defines the pension, disability, and death benefits offered under the Milwaukee ERS.51 This section outlines in detail the scope of the word “benefits” as it is used in the Charter, listing every benefit of the plan and the terms and conditions related to those benefits. The City of Milwaukee‘s self-imposed obligation to pay the employee share of contributions is conspicuously absent from this section.52
¶ 153. In sum, no unmistakable indicia exists in Chapter 36 that contributions paid by the city are a defined “benefit” that is forever impervious to alteration.
¶ 154. As a defined benefit plan, the Milwaukee ERS calculates benefits based on years of service multiplied by a fixed percentage of base salary. See Milwaukee, Wis. Charter Ordinance ch. 36. The plaintiffs argue that
¶ 155. The plaintiffs’ argument conflates the accrued benefits of plan members, which
¶ 156. The plaintiffs’ contention that
¶ 157. Our decision is dictated by the plain language in the Milwaukee Charter Ordinance. Nothing in the Charter evidences that the legislature unmistakably intended to create binding contract rights in the contribution rates established in § 36-08-7-a-1. Further, even if it were unclear whether the legislature intended “contributions” to be a contractually vested
¶ 158. We need not reach the question of impairment or substantiality because the plaintiffs have failed to demonstrate that the allocation of contribution rates in the Milwaukee ERS is a contractual “benefit” protected by the Contract Clause. We conclude that the City of Milwaukee was not contractually obligated to pay the employee share of contributions into the Milwaukee ERS. Therefore, we hold that the plaintiffs failed to establish beyond a reasonable doubt that
IV. CONCLUSION
¶ 159. We hold the following:
¶ 160. First, we hold that the plaintiffs’ associational rights argument is without merit. We reject the plaintiffs’ argument that several provisions of Act 10, which delineate the rights, obligations, and procedures of collective bargaining, somehow infringe upon general employees’ constitutional right to freedom of association. No matter the limitations or “burdens” a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The First Amendment cannot be used as a vehicle to expand the parameters of a benefit that it does not itself protect. Accordingly, we conclude that
¶ 162. Third, we hold the plaintiffs’ home rule amendment argument fails because
¶ 163. Finally, we hold that the plaintiffs’ Contract Clause claim fails. The City of Milwaukee was not contractually obligated to pay the employee share of contributions to the Milwaukee ERS. Further, even if the contributions paid by the City were a contractual right, we hold the contract was not substantially impaired by
¶ 164. Therefore, we uphold Act 10 in its entirety.
By the Court.—The decision and order of the circuit court is reversed.
¶ 165. N. PATRICK CROOKS, J. (concurring.) As a justice of the Supreme Court of Wisconsin, I join the majority of this Court in voting to uphold the constitutionality of Act 10. In answering the legal questions put to us as we must, we affirm a legislative act that appears to have gone further than needed. For many
¶ 166. It is my firm belief that individuals should have the right to organize and bargain collectively regarding their wages and the terms of their employment. As thoughtful people from across the political spectrum and around the world have long recognized, collective bargaining benefits workers, employers and society itself. Although Act 10 does not violate either the United States Constitution or the Wisconsin Constitution, it erodes longstanding benefits both to public workers and to public employers. I write separately to make clear what my vote in this case means and to emphasize the importance of policies that give rights to workers to organize and bargain collectively.
I. THE LEGAL FRAMEWORK
¶ 167. The legal questions in this case can be answered in no other way than the majority answers them. Because the affected workers retain “a right to associate for the purpose of engaging in those activities protected by the First Amendment,”1 Act 10 violates neither their constitutional right of association nor their right to equal protection.2 The collective bargaining rights at issue here are statutory, not constitutional rights.
League of Women Voters v. Walker, 2014 WI 97, ¶¶ 62-63, 68, 357 Wis. 2d 360, 851 N.W.2d 302 (Crooks, J., concurring) (internal citations and quotations omitted).With this type of facial challenge, the odds are against the plaintiffs at every turn. A court is bound to recognize the presumption that the statute is constitutional. Here, the plaintiffs must prove otherwise beyond a reasonable doubt. In considering such a challenge, a court must resolve any doubt about the constitutionality of a statute in favor of upholding the statute.
In short, the question before us in this case is not whether the [challenged statute] is good policy, not whether it accomplishes what it sets out to do, and not whether it is unfair under some circumstances to some individuals. The question before us in this case is solely this: starting with a presumption of constitutionality in its favor, are we persuaded beyond a reasonable doubt that the statute violates the Wisconsin Constitution in every circumstance? . . .
The question here is not whether the [statute] is good policy, but whether the plaintiffs have proved beyond a reasonable doubt that the [statute] violates the Wisconsin Constitution on any of the grounds claimed by these plaintiffs. Given the framework within which the question must be answered, I agree with the holding of the majority that the plaintiffs have not shown beyond a reasonable doubt that the statute is unconstitutional, and I join that holding and the mandate. I can reach no other conclusion than to uphold [the statute] based on the purely facial challenge here. I therefore respectfully concur.
169. As was true in that case, the analysis required here is straightforward. Under the proper application of the correct legal standard and the relevant precedent, this is not a close call. Therefore the plaintiffs’ challenge must fail.
II. HISTORICAL RECOGNITION OF COLLECTIVE BARGAINING AND ITS VALUE TO SOCIETY
170. The value and necessity of collective bargaining and the fair treatment of workers have been recognized by many thoughtful people. As we considered this case, I recalled the eloquence of Rerum Novarum, the 1891 encyclical of Pope Leo XIII that seriously discussed the questions of resolving conflicts between employers and employees fairly and justly. Though more than 120 years have passed since his writing, the encyclical retains a remarkable relevance with its thoughtful comments about workers, employers, unions and “free agreements” reached about wages, hours and conditions of employment.
171. This lengthy document acknowledges the delicate task it undertakes, takes care to avoid extremist language and specifically rejects socialism as a solution to legitimate concerns of unjust working conditions. Instead, it adopts a respectful tone, recognizing the necessity of free enterprise to society, the value of work and the contributions of workers to their societies:
Now, for the provision of such commodities, the labor of the working class—the exercise of their skill, and the
employment of their strength, in the cultivation of the land, and in the workshops of trade—is especially responsible and quite indispensable. . . . Justice, therefore, demands that the interests of the working classes should be carefully watched over by the administration, so that they who contribute so largely to the advantage of the community may themselves share in the benefits which they create. . . . It follows that whatever shall appear to prove conducive to the well-being of those who work should obtain favorable consideration.3
¶ 172. From such philosophical foundations, the writing turns to practical considerations:
Let the working man and the employer make free agreements, and in particular let them agree freely as to the wages. . . . In these and similar questions however—such as, for example, the hours of labor in different trades, the sanitary precautions to be observed in factories and workshops, etc.—in order to supersede undue interference on the part of the State, especially as circumstances, times, and localities differ so widely, it is advisable that recourse be had to societies or boards such as We shall mention presently, or to some other mode of safeguarding the interests of the wage-earners; the State being appealed to, should circumstances require, for its sanction and protection.
. . .
The most important of all [such associations designed to aid workers] are workingmen‘s unions, for these virtually include all the rest. History attests what excellent results were brought about by the artificers’ guilds of olden times. . . . Such unions should be suited to the requirements of this our age—an age of wider
education, of different habits, and of far more numerous requirements in daily life. . . . [T]o enter into a “society” of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them; and, if it forbids its citizens to form associations, it contradicts the very principle of its own existence, for both they and it exist in virtue of the like principle, namely, the natural tendency of man to dwell in society.4
¶ 173. After setting out this template for mutually respectful relationships between employer and worker, and explicitly endorsing the value of protective organizations such as “workingmen‘s unions,” Pope Leo XIII goes on to state, “[E]very precaution should be taken not to violate the rights of individuals and not to impose unreasonable regulations under pretense of public benefit.”5
¶ 174. The encyclical concludes,
We may lay it down as a general and lasting law that working men‘s associations should be so organized and governed as to furnish the best and most suitable means for attaining what is aimed at, that is to say, for helping each individual member to better his condition to the utmost in body, soul and property.6
¶ 175. This recognition of the critical importance of a worker‘s right to collective bargaining was also central to the political philosophy of one of the most influential public figures in Wisconsin history, United States Senator Robert M. La Follette. Identifying the forces arrayed against the working person in the early twentieth century, La Follette stated at the outset of the
¶ 176. Interestingly, Ronald Reagan, a United States President some would consider to be from the other end of the political spectrum, expressed similar convictions. In 1980, the year he was elected, Reagan gave an impassioned Labor Day speech in which he pledged that “American workers will once again be heeded” and promised to “consult with representatives of organized labor on those matters concerning the welfare of the working people of this nation.”8
¶ 177. He noted his own union affiliation and experiences:
I happen to be the only president of a union ever to be a candidate for President of the United States. As president of my union—the Screen Actors Guild—I spent many hours with the late George Meany,9 whose love of country and whose belief in a strong defense against all totalitarians is one of labor‘s greatest legacies. One year ago today on Labor Day George Meany told the American people:
As American workers and their families return from their summer vacations they face growing
unemployment and inflation, a climate of economic anxiety and uncertainty. Well I pledge to you in his memory that the voice of the American worker will once again be heeded in Washington and that the climate of fear that he spoke of will no longer threaten workers and their families.10
¶ 178. Reagan went on to focus on the role of unions in bringing about a dramatic transformation of communist Poland:
These are the values inspiring those brave workers in Poland. The values that have inspired other dissidents under Communist domination. They remind us that where free unions and collective bargaining are forbidden, freedom is lost. . . . Today the workers in Poland are showing a new generation not how high is the price of freedom but how much it is worth that price.11
III. CONCLUSION
¶ 179. It is my view that the Wisconsin Legislature and Governor could have chosen a different way to accomplish a goal of cost savings that would have left intact meaningful union representation carried out through statutory collective bargaining for public employees. It is also my view that the damage to public employee unions due to Act 10 was unnecessary. It is a departure from Wisconsin‘s strong tradition.
¶ 180. Act 10 embodies policy determinations, and such questions are not properly addressed to the members of the Supreme Court of Wisconsin. Such
¶ 181. ANN WALSH BRADLEY, J. (dissenting.) In reflecting on the importance of an independent judiciary as a separate branch of government, former United States Supreme Court Chief Justice William Rehnquist called the authority to declare unconstitutional a law passed by legislature “probably the most significant single contribution the United States has made to the art of government.”
I believe that the creation of an independent constitutional court, with the authority to declare unconstitutional laws passed by the state or federal legislatures, is probably the most significant single contribution the United States has made to the art of government.1
¶ 182. He emphasized the important role that courts serve in protecting the rights guaranteed under the Constitution. Courts serve as guardians of the constitutional rights of all people. Our challenge as a
¶ 183. In this case we are presented with constitutional challenges to Act 10. The majority aptly sets forth its results. However, it is difficult to find in the majority‘s lengthy opinion a discussion of the actual arguments and issues presented by the parties.
¶ 184. An actual issue presented by Madison Teachers is: Does Act 10 infringe on the associational rights of public employees to organize?2
¶ 185. Yet the majority reframes the issue to determine whether there is a constitutional right to collective bargaining and whether the State has an obligation to promote First Amendment rights.
¶ 186. An actual issue presented by the parties is: Does the provision in Act 10 prohibiting Milwaukee from making contributions to its employees’ pension plans violate the Home Rule Amendment?
¶ 187. Rather than focusing on the provision at issue, the majority shifts the focus to the purpose behind Act 10 as a whole. It determines that because Act 10 deals generally with financial matters, the prohibition on Milwaukee‘s pension contributions is a matter of statewide concern.
¶ 188. An actual issue presented by the parties is: Does the prohibition on pension contributions violate the Contract Clause given that benefits are guaranteed by the Milwaukee Charter Ordinance?
¶ 190. The result of the majority‘s dodge is the needless diminution of multiple constitutional rights:
- The right of freedom of association to organize is diluted as the majority has opened the door for the State to withhold benefits and punish individuals based on their membership in disfavored groups.
- Municipalities’ right to self-govern as granted by the Home Rule Amendment rings hollow as the majority determines that when the State has budgetary difficulties, matters dealing with local finances are now matters of statewide concern, even absent any showing of an impact on the State budget.
- And the right to contract is undermined as the majority demonstrates its willingness to creatively interpret a contract in a manner permitting the State to disregard it.
¶ 191. I determine that the majority‘s failure to address the actual issues presented allows it to substitute analyses resulting in conclusions that countenance the violation rather than the protection of constitutional rights. Because I determine that Act 10 unconstitutionally infringes on protected rights, I respectfully dissent.
¶ 192. There are three main issues raised by the parties: (I) the Right To Associate; (II) the Home Rule Amendment; and (III) the Contract Clause. I address each in turn.
I. The Right To Associate
¶ 193. Madison Teachers asserts that Act 10 violates the First Amendment right of freedom of associa-
¶ 194. Rather than addressing plaintiff‘s issue that Act 10 infringes on its constitutional right to organize into a collective bargaining unit, the majority erroneously asserts that plaintiff is claiming a right to bargain as a collective bargaining unit.5 It then determines that no such right exists.
¶ 195. In rejecting Madison Teachers’ purported claims, the majority stresses that “[g]eneral employees have no constitutional right to negotiate with their municipal employer.” Majority op., ¶ 38. It further states that “collective bargaining . . . is not constitution-
¶ 196. In one instance, the majority appears to acknowledge the plaintiff‘s actual claim but then distorts it. The majority begins the sentence by correctly referencing “the ‘right’ the plaintiffs refer to—the right to associate with a certified representative.” Id., ¶ 37. So far, so good. However, it then ends the sentence with a distortion of the claim, describing the right being asserted as a right “to collectively bargain on any subject.” Id.
¶ 197. The majority is well aware that the plaintiff has never asserted that it has a constitutional right to collectively bargain, let alone bargain on any subject. In fact, elsewhere in its opinion, the majority acknowledges that the plaintiff is not arguing a constitutional right to bargain: “The plaintiffs have insisted at every stage of litigation in this case that they are not arguing a constitutional right exists to collectively bargain.” Id., ¶ 39. Yet the majority persists in focusing its analysis on the right to bargain.
¶ 198. The plaintiff‘s actual argument is based on the well-established premise that there is a constitutional right to organize as a collective bargaining unit. In fact, the United States Supreme Court has declared it to be a fundamental right: “the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer . . . is a fundamental right.” NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937) (emphasis added). Likewise, the Court has stated that the
¶ 199. As early as 1902, the Wisconsin Supreme Court has similarly stressed the “sacredness” of the right of employees to organize. State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 541, 90 N.W. 1098 (1902). Against this background, the majority‘s failure to squarely address the plaintiff‘s argument is remarkable. In reaching its result the majority appears to ignore over a century‘s worth of jurisprudence and undermines a right long held sacred in our State.6
¶ 200. Madison Teachers’ argument that Act 10 violates associational rights is twofold. First, it focuses on the provisions in Act 10 requiring collective bargaining units to hold annual recertification elections, eliminating fair share agreements, and prohibiting municipalities from withholding dues from employees’ wages. It contends that these provisions violate its associational rights because they infringe on those rights by
¶ 201. Rather than considering whether Act 10 discourages the exercise of the associational right to organize, the majority pivots to a different issue advanced by the State and then analyzes that issue. It advances that the State is not required to subsidize speech, and ultimately concludes that the challenged provisions regarding fair share agreements, paycheck dues deductions, and annual recertification do not burden the exercise of associational rights. Majority op., ¶¶ 54, 59, 61.7
¶ 202. By pivoting to the issue of whether the constitution requires the State to subsidize speech, the majority avoids the actual argument advanced before this court: whether Act 10 infringes on the associational right to organize by discouraging membership in a collective bargaining unit. Given the void in the majority‘s analysis, I turn to address the actual issue.
¶ 203. The
¶ 204. The United States Supreme Court illustrated this principle in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). Patterson involved a State requirement that NAACP reveal its membership list. The court determined that the State action was “likely to affect adversely the ability of petitioner and its members to pursue their collective effort[s] [by] . . . induc[ing] members to withdraw from the Association and dissuad[ing] others from joining it.” Id. at 462-63. Thus, because the requirement that NAACP reveal its membership list was not supported by a compelling government interest, the court determined that it was unconstitutional. Id. at 466.
¶ 205. Similarly, the provisions in Act 10 discourage organizing as a collective bargaining unit by increasing its cost.
¶ 206. Further, although collective bargaining units must provide benefits to all members, Act 10 eliminates fair share agreements requiring members to pay their proportionate share of the cost of providing those services.8
¶ 207. By making membership unduly expensive, these Act 10 provisions collectively infringe on the associational right to organize. There is no doubt that these provisions act to discourage membership. The majority‘s narrow focus on whether the State is required to facilitate free speech shifts the focus from this issue. In doing so, the majority avoids directly addressing the question of whether these provisions impermissibly punish the exercise of the right to associate.
¶ 208. The majority similarly avoids addressing Madison Teachers’ second argument, that Act 10 creates unconstitutional conditions. Again, it simply reshapes the argument.
¶ 210. The doctrine of unconstitutional conditions provides that “the government may not deny a benefit to a person because he exercises a constitutional right.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013). This doctrine reflects the idea that “the Constitution‘s protection is not limited to direct interference with fundamental rights.” Healy v. James, 408 U.S. 169, 183 (1972). Freedoms, such as the right to associate, “are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” Bates v. City of Little Rock, 361 U.S. 516, 523 (1960).
¶ 211. Even though there may be no constitutional right to a benefit, the State cannot premise receipt of that benefit upon a person foregoing a constitutionally protected right. Bd. of Cnty. Comm‘rs v. Umbehr, 518 U.S. 668, 674 (1996). Such a condition effectively punishes the free exercise of constitutional liberties, accomplishing indirectly what the State cannot command directly. Sherbert v. Verner, 374 U.S. 398, 406 (1963).
¶ 212. The seminal Wisconsin case applying this doctrine is Lawson v. Housing Auth. of Milwaukee, 270 Wis. 269, 70 N.W.2d 605 (1955). In Lawson, the court held that it was impermissible for a federal statute to
¶ 213. The court explained that if the government could defend a statute “on the ground that the plaintiff is being deprived thereby only of a privilege, and not of a vested right, there is extreme danger that the liberties of any minority group in our population, large or small, might be swept away.” Id. at 275. In other words, once the government has decided to grant a benefit, it cannot condition that benefit on relinquishment of a constitutionally protected right.
¶ 214. The majority pays lip service to this doctrine, but then fails to actually apply it. Majority op., ¶¶ 29, 38. Its focus on whether the benefit itself is required belies any suggestion that the majority is following the precedent on unconstitutional conditions.
¶ 215. Act 10 is clear: if you have exercised your associational right to organize as a collective bargaining unit you lose your ability to negotiate over anything other than an increase in base wages up to the amount of inflation.
¶ 216. Because Act 10 infringes on associational rights to organize by discouraging and punishing membership in collective bargaining units, it can survive strict scrutiny only if it is narrowly tailored to meet a compelling government interest. The State has made no argument that Act 10 is narrowly tailored to meet a compelling government interest and has conceded that it cannot meet this standard. Accordingly, I conclude
II. Home Rule
¶ 217. Next, Madison Teachers challenges the provision in Act 10 which prohibits the City of Milwaukee from making pension contributions on behalf of its employees,
- “[S]tatewide legislation aimed at improving the fiscal health of the State budget is indisputably a general state concern.” Id., ¶ 115.
- “[T]he legislature‘s determination in 1947 that pension and retirement plans are a local concern does not mean it is an accurate portrayal of how pension and retirement plans impact the fiscal realities of Wisconsin in 2014.” Id., ¶ 127.
“The legislature has broad latitude to experiment with economic problems and we do not presume to second-guess its wisdom.” Id., ¶ 119.
See also id., ¶¶ 111, 118, 120, 122. In other words, when the State has budgetary issues local finances are matters of statewide concerns, even absent any showing of impact on the State budget.
¶ 219. This determination is stunning, not just because of its breadth, but also because it runs counter to the history of the Home Rule Amendment and Milwaukee‘s pension system, ignores our precedent, and is unsupported by fact. The majority‘s result substantially strips municipalities of their right to self-govern as granted by the Home Rule Amendment because much of what municipalities do involves “fiscal matters.”
¶ 220. The Home Rule Amendment grants cities and towns the authority to determine their own local affairs, subject only to “enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.”
¶ 221. Under the Home Rule framework, the funding of a city‘s pension plan has historically been viewed as primarily local in nature. The legislature recognized this when it authorized Milwaukee to establish its own Milwaukee Employee Retirement System (MERS). § 31(1), ch. 41, Laws of 1947. It expressly declared Milwaukee‘s pension system to be “a local affair” that should not be construed as a matter of statewide concern:
For purpose of giving to cities of the first class the largest measure of self-government with respect to pension annuity and retirement systems compatible with the constitution and general law, it is hereby
declared to be the legislative policy that all future amendments and alterations to this act are matters of local affair and government shall not be construed as an enactment of state-wide concern.
¶ 222. The majority‘s determination that the funding of Milwaukee‘s pension system is primarily a matter of statewide concern also ignores precedent. In State ex rel. Brelsford v. Ret. Bd. of the Policemen‘s Annuity & Benefit Fund, 41 Wis. 2d 77, 163 N.W.2d 153 (1968), a constitutional challenge was brought against a Milwaukee charter amendment that permitted retired police officers to receive pensions while working as school teachers. The court determined that pension funds for Milwaukee police officers “seem[] overwhelmingly to be a matter of predominate local concern.” Id. at 87.
¶ 223. The court explained that “the state would have little interest in whether a retired policeman taught school in Milwaukee or in some other municipality. This is a matter of unique interest to Milwaukee.” Id. Similarly, the court has described “the control of the locality over payments from the local purse” as one of a municipality‘s “most important” functions. Van Gilder v. City of Madison, 222 Wis. 58, 81–82, 267 N.W. 25 (1936).15
¶ 225. Our jurisprudence is consistent with that of other states that have determined that compensating city employees is primarily a matter of local concern. See, e.g., Bruckshaw v. Paolino, 557 A.2d 1221, 1224 (R.I. 1989) (“the regulation of city employee pensions is of local concern“); N. Ohio Patrolmen‘s Benevolent Ass‘n v. Parma, 402 N.E.2d 519, 525 (Ohio 1980) (“the ability to determine the salaries paid to city employees is a fundamental power of local self-government.“); City of Colorado Springs v. State, 626 P.2d 1122, 1127 (Colo. 1980) (“Although the establishment of firemen‘s pension plans is of statewide concern, the extent to which a home rule city must provide financial support for such a plan is a question intimately involving city budgeting and the assessment and collection of taxes for municipal purposes. These are local and municipal matters.“); Sonoma Cnty. Org. of Public Emps. v. Cnty. of Sonoma, 591 P.2d 1, 13 (Cal. 1979) (“the wages paid to employees of charter cities as well as charter counties is a matter of local rather than statewide concern.“); Crawford v. City of Chicago, 710 N.E.2d 91, 98 (Ill. App. Ct. 1999) (“The power to extend to its employees both compensa
¶ 226. Further undermining its analysis, the majority relies on the broad purpose behind Act 10, rather than the purpose behind the specific statute at issue,
¶ 227. The State presented no credible evidence showing that Milwaukee pension expenditures have any impact on the State budget. Although the State pointed to its “shared revenue” program, the amounts provided by the State to a municipality under that program are not based on the municipality‘s budget or expenditures. See
¶ 228. The shared revenue program does not show a relationship between city contributions to city employee pension plans and the State budget. Indeed, even the majority recognizes that the administration of a city‘s retirement system is “entirely self-reliant in both its management and funding.” Majority op., ¶ 114. There are no facts in the record to determine that Milwaukee‘s funding of employee pensions has any effect on statewide financial concerns. Accordingly, the majority‘s determination that
¶ 230. The issues of when and whether a statute applying to a specific set or class of cities is uniform requires a nuanced analysis. State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 530 n.16, 253 N.W.2d 505 (1977). The concern of targeting individual cities is echoed throughout case law as the court has grappled with the problem of uniformity in the home rule context. See, e.g., id.; State ex rel. Sleeman v. Baxter, 195 Wis. 437, 448, 219 N.W. 858 (1928); Ekern, 190 Wis. at 642. The majority opinion cannot simply wave away these concerns by abruptly ending its analysis. The hole left in the majority‘s application on this issue further renders its conclusion infirm.
¶ 231. By determining that
III. Contract Clause
¶ 233. Madison Teachers also asserts that the provision in Act 10 prohibiting Milwaukee from making pension contributions on behalf of its employees violates the Contract Clause of the Wisconsin Constitution.17 It argues that the Milwaukee Charter Ordinance constitutes a contract guaranteeing its right to benefits. Because Act 10 prohibits the benefit of employer funded pension contributions, it contends that Act 10 interferes with its contract rights.
¶ 234. By twisting the definition of the word “benefit,” the majority determines that employer pension contributions are not really benefits at all. As a consequence it is able to exclude the employer contributions, determining that they are not part of the benefit contract as provided in the Milwaukee Charter Ordinance. Accordingly, it concludes that the provision in Act 10 prohibiting Milwaukee from making pension contributions does not violate the Contract Clause.
¶ 235. This analysis is problematic in two respects: (1) it overlooks the language of the Milwaukee Ordinance and (2) it is contrary to the ordinary meaning of the term “benefit.” By overlooking language in the ordinance and by demonstrating its willingness to creatively interpret contract terms to avoid finding a17
¶ 236. Under the Contract Clause, “[n]o ... law impairing the obligation of contracts, shall ever be passed.”
¶ 237. Milwaukee‘s Charter Ordinance provides that Milwaukee will fund member pension contributions to MERS on behalf of its employees. Specifically, it states that “the city shall contribute on behalf of general city employees 5.5% of such member‘s earnable compensation.” Mil. Ch. Ord. § 36-08-7-a-1.
¶ 238. Next, the ordinance states that employees shall have a benefit contract as provided by the ordinance that shall not be impaired by future legislation:
Every such member ... shall thereby have a benefit contract in ... all ... benefits in the amounts and upon the terms and conditions and in all other respects as provided under this [ordinance] ... and each member and beneficiary having such a benefit contract shall have a vested right to such benefits and they shall not be diminished or impaired by subsequent legislation or by any other means without his consent.
Mil. Ch. Ord. § 36-13-2-a.
¶ 239. Then, the ordinance states that employees have a vested contract right to their benefits:
Every member, retired member, survivor and beneficiary who participates in the combined fund shall have a vested and contractual right to the benefits in the
amount and on the terms and conditions as provided in the law on the date the combined fund is created.
Mil. Ch. Ord. § 36-13-2-g.
¶ 240. The majority acknowledges that those provisions create a contract right to pensions, but determines that they do not create a contract right to pension contributions. Majority op., ¶¶ 144-45, 156-57. It notes that “[f]or a legislative enactment to be considered a contract, ‘the language and circumstances [must] evince a legislative intent to create private rights of a contractual nature enforceable against the State.‘” Id., ¶ 142 (quoting Wisconsin Profl Police Ass‘n, Inc. v. Lightbourn, 2001 WI 59, ¶ 145 n.188, 243 Wis. 2d 512). Reasoning that there is no indication that the city council intended to classify pension contributions as benefits, the majority determines that there is no contractual obligation for Milwaukee to make those payments. Id., ¶¶ 150, 153, 158.
¶ 241. The majority supports its strained interpretation of the term “benefit” with a cursory reading of Milwaukee‘s Charter Ordinance. It suggests that the term “benefits” as used in the ordinance, cannot mean pension contributions because Milwaukee‘s obligation to pay employee contributions “is conspicuously absent from [the section of the Milwaukee Charter Ordinance titled “Benefits,” Mil. Ch. Ord. § 36-05].” Id., ¶ 152.
¶ 242. In reaching its result, the majority overlooks the very first section in the benefits chapter of the Milwaukee Charter Ordinance. Milwaukee Charter Ordinance § 36-05-1-d specifically incorporates Mil. Ch. Ord. § 36-08-7, which requires the city to fund the 5.5% member contributions of its employees. It states:
The member shall be guaranteed that if the total benefit in the form of a monthly retirement allow-
ance ... does not equal the amount of the member‘s contributions as provided for in s. 36-08-7 [requiring the city to fund those 5.5% member contributions], ... then the balance of the member‘s contributions with interest shall be payable in lump sum amount to a designated beneficiary or to an estate entitled thereto.
Mil. Ch. Ord. § 36-05-1-d (emphasis added).18
¶ 243. Indeed, the majority‘s assertion that pension contributions are not benefits is contrary to the common use of the term “benefits.” See, e.g., State ex rel. City of Manitowoc v. Police Pension Bd., 56 Wis. 2d 602, 612A, 203 N.W.2d 74 (1973) (“[I]n view of modern day employment inducements, fringe benefits such as insurance premiums, pension fund contributions and perhaps others are to be included in the formula for calculating pension benefits for police and firemen.“); Titan Tire Corp. of Freeport, Inc. v. United Steel, Paper, & Forestry, Rubber, Mfg., 734 F.3d 708, 731 (7th Cir. 2013) (“They were also receiving an array of fringe benefits, including health care and pension contributions.“); City of Ft. Wayne v. Ramsey, 578 N.E.2d 725, 728 (Ind. Ct. App. 1991) (“employer-paid pension contributions are in the nature of a fringe benefit“).
¶ 244. Not only is the majority‘s assertion contrary to the common use of the term, it is contrary to the majority‘s common experience. Every year the State of Wisconsin sends to its employees a “Statement of Annual Benefits.”19 The benefit of employer pension contributions is among the several benefits listed. For executive branch employees, pension contributions = benefits. For legislative branch employees, pension contributions = benefits. As the majority well knows, for judicial branch employees, pension contributions = benefits. Every State of Wisconsin paycheck stub lists an employer paid pension contribution as a benefit.
¶ 245. Nevertheless, the majority persists in twisting the definition of benefit allowing it to creatively interpret a contract in a manner permitting the State to disregard it. The majority rests its conclusion that there is no violation of the Contract Clause on the
¶ 246. The majority‘s strained reading of the term “benefit,” excluding employer pension contributions from its definition, is contrary to the use of the term “benefit” in the Milwaukee Charter Ordinance and the common use of the term. Accordingly, its analysis of whether the prohibition on employer contributions in
IV.
¶ 247. In sum, the majority‘s failure to address the actual issues presented in this case allows it to reach results that countenance the needless diminution of multiple constitutional rights. The right to freedom of association is diluted as the majority has opened the door for the State to withhold benefits and punish individuals based on their membership in disfavored groups. Municipalities’ right to self-govern as granted by the Home Rule Amendment now rings hollow as the majority determines that when the State has budgetary concerns, anything dealing with local finances is a statewide matter. And the right to contract is undermined as the majority demonstrates its willingness to creatively interpret a contract in a manner permitting the State to disregard it.
¶ 248. For the reasons set forth above, I determine that Act 10 unconstitutionally infringes on protected rights. Accordingly, I respectfully dissent.
Notes
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Ronald Reagan, Labor Day Speech at Liberty State Park, Jersey City, New Jersey (Sept. 1, 1980), available at www.reagan.utexas.edu/archives/reference/9.1.80.html (last visited May 29, 2014). Although the majority questions the constitutionality of fair share agreements, majority op., ¶ 58, the United States Supreme Court recently affirmed that fair share agreements for “full-fledged state employees” are constitutionally permissible. Harris v. Quinn, 573 U.S. 616, 646 (2014). Harris dealt with a challenge to fair share agreements brought by personal assistants. The court determined that because personal assistants were not full-fledged public employees they could not be compelled to make fair share payments.The constitutionality of a statute is an issue of law, not fact. The “beyond the reasonable doubt burden of proof” language is, however, reminiscent of an evidentiary burden of proof in criminal cases. The beyond a reasonable doubt burden of proof in a constitutional challenge case means that a court gives great deference to the legislature, and a court‘s degree of certainty about the unconstitutionality results from the persuasive force of legal argument.
As discussed above, the right to organize in a collective bargaining unit is encompassed in the fundamental right to associate protected by the First Amendment. See supra, ¶¶ 18-19. The challenged provisions of Act 10 implicate those associational rights because they treat employees that are members of a collective bargaining unit differently than employees that are not members of collective bargaining units. As these provisions of Act 10 implicate the fundamental right to associate, strict scrutiny, rather than rational basis review, should be applied to evaluate whether Act 10 violates the equal protection clause.
Beginning on July 1, 2011, in any employee retirement system of a 1st class city . . . employees shall pay all employee required contributions for funding benefits under the retirement system. The employer may not pay on behalf of an employee any of the employee‘s share of the required contributions.
Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.
In a single paragraph the majority mentions the State‘s historic role in matters affecting the employer-employee relationship. Majority op., ¶ 115. In another single paragraph it touches upon the State‘s obligation to maintain a functioning civil service system. Id., ¶ 118. Finally, it takes two short paragraphs to mention the scope of Act 10 as justification. Id., ¶¶ 121-22.
Similar sentiments were expressed in other newspapers. See, e.g., Joseph P. Harris, Questions and Answers, Madison Capital Times, Jan. 19, 1924, Saturday Afternoon Ed., at 9 (“Home rule secures to cities and villages a larger share in the control over matters of purely local concern. It frees the city or village from a considerable amount of state interference and regulation.“); Home Rule, Wisconsin Rapids Daily Tribune, Oct. 29, 1924, at 4 (“The meaning of the amendment is briefly stated by the legislative committee of the Milwaukee common council, which is working for its adoption, as follows: The home rule amendment if passed will give villages and cities in Wisconsin broader self-governing powers and leave local affairs to the local governing bodies, without first seeking the authority from the legislature.“).
Public statements intended to persuade voters during the ratification process inform the interpretation of a constitutional amendment. Appling v. Walker, 2014 WI 96, ¶¶ 28-37, 355 Wis. 2d 227, 853 N.W.2d 888; see also Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶ 19, 295 Wis. 2d 1, 719 N.W.2d 408.
The majority appears to either dismiss or overlook additional sections of the Ordinance: “Separation Benefits,” Mil. Ch. Ord. § 36-05-6-6, and “Ordinary Death Benefit,” Mil. Ch. Ord. § 36-05-6-10. Both likewise reference Milwaukee‘s contributions to the pension funds. Both reference “accumulated contributions,” which is a defined term that incorporates the 5.5% city funded member contributions as set forth in Mil. Ch. Ord. § 36-08-7.
The Separation Benefits provision states: “Should a member cease to be an employee ... he or she shall be paid his or her accumulated contributions as they were at date of separation from service.” Mil. Ch. Ord. § 36-05-6-6 (emphasis added). Similarly, the Ordinary Death Benefit provision states: “Upon receipt of proper proofs of death ... his or her accumulated contributions shall be paid to such person, or such trustee, if any, as he or she has nominated.” Mil. Ch. Ord. § 36-05-06-10 (emphasis added).
“Accumulated contributions” is a defined term in the ordinance, referring to “the sum of the contributions in the member‘s account, as provided for in s. 36-08-7-i.” Mil. Ch. Ord. § 36-02-1. Section 36-08-7-i of Milwaukee‘s Charter Ordinance states in relevant part that “[t]he member‘s account shall consist of those member contributions deposited in accordance with pars ... b.” Again, paragraph b requires Milwaukee to make contributions on behalf of its employees into their pension account. Mil. Ch. Ord. § 36-08-7-b. Thus, the majority‘s reliance on the absence of employer contributions from the benefits chapter of the Milwaukee Charter Ordinance appears misplaced.
In our analysis of the plaintiffs’ equal protection claims, we treat the rights protected under the Wisconsin and United States Constitutions as coextensive. See C & S Mgmt., 223 Wis. 2d at 393-94 (noting thatAll people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.
Beginning on July 1, 2011, in any employee retirement system of a 1st class city, except as otherwise provided in a collective
In the absence of state constitutional provisions safeguarding it to them, municipalities have no inherent right of self-government which is beyond the legislative control of the state. A municipality is merely a department of the state, and the state may withhold, grant or withdraw powers and privileges as it sees fit. However great or small its sphere of action, it remains the creature of the state exercising and holding powers and privileges subject to the sovereign will.
The home rule amendment does not apply to counties in Wisconsin. However, counties have home rule protection pursuant to statute, though it is more limited than the protection afforded by constitutional municipal home rule. See